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WORK VISA OPTIONS:
H-1B Visa:
For many people entering the workforce, this is the visa of choice. One
benefit is that it can often be obtained in a very short time. To
oversimplify the requirements, an H-1B visa can be applied for if you have
at least a four-year bachelor's degree or higher, and the position in
which you will work requires at least a four-year degree. The general
requirements for the H-1B visa are set forth on the BCIS website. These
visas used to be easy to obtain; nowadays nothing is easy to obtain from
the BCIS (Bureau of Citizenship and Immigration Services, formerly the
INS, Immigration and Naturalization Service). This firm is familiar with
all aspects of applying for H-1B visas, including ensuring that the job
description meets the H-1B visa requirements, the prevailing wage is
properly met, and the applicant meets the legal requirements. We also set
it up to lay a foundation for a later permanent visa, should you want one.
H-1B visas can be issued for up to three years at a time, to a maximum of
six years. Many people use that six years to obtain US permanent
residency, and the H-1B is a good platform from which to do so.
Another benefit of the H-1B visa, at least for university teaching
positions, is that in some instances the same job, even the same
advertising campaign and search committee process, can be the basis for
both a successful H-1B application and a permanent resident visa
application. This is explained more fully under College Faculty (see Labor
Certification for College Faculty below) and should be carefully examined,
so that a great opportunity is not lost.
O-1 Visa for Individuals of
Extraordinary Ability:
For some, another work visa option is the O-1 Visa for Aliens of
Extraordinary Ability. This visa category is available to those whose
accomplishments are truly outstanding, as shown by a higher level of
accomplishment than their peers in such areas as the quality and number of
their publications and the prestige of the journals in which they are
published, the number and importance of reviews the applicant has
performed on the work of others, the amount of salary, receipt of
prominent awards, presentations at prestigious colloquia, membership in
prestigious organizations, articles about the applicant, and major
contributions made by the applicant in his or her field of endeavor, among
others. Extensive documentation must be provided, to prove a level of
sustained national, and sometimes international, acclaim.
This visa requires a lot more than merely
submitting a copy of one's C.V. and a few letters from colleagues stating
that the individual is of high caliber. For an example of how difficult
these applications can be, check these administrative decisions that show
the grounds for rejection, even of very highly accomplished individuals.
Our law firm stays abreast of the requirements for successful O-1 visa
applications, and understands how to "package" one's
accomplishments in a way that is palatable to the immigration authorities.
One benefit of the O-1 visa category is that successful applicants will
have laid a good foundation for a permanent visa based on an Outstanding
Professor or Researcher application, or an Extraordinary Ability
Application. (See below)
TN Visa:
Certain professionals from Canada and Mexico qualify for TN or
"Treaty NAFTA" visas, valid for one year, renewable for as long
as the individual continues to qualify. To oversimplify, the visa is
issued to those with at least a Bachelor's degree, in a position that
requires a Bachelor's degree. It cannot be used for self-employment. One
qualification is that the individual must maintain a residence in, and
must prove an intent to return to, his or her homeland in Canada or
Mexico. Filing an application for Labor Certification, a National Interest
Waiver, or for Permanent Residence demonstrates an intention to remain in
America, and can lead to prompt termination of TN status. For Canadians,
TN visas are faster and easier to obtain than H-1B visas and are often
useful as intermediate visas; for Mexicans they are almost as difficult as
H-1B visas to obtain and often, but not always, are not worth the trouble.
PERMANENT VISAS:
Permanent visas: Labor Certification
"Labor Certification" is the process of obtaining verification
from the U.S. Department of Labor that no qualified American wants the job
that you want as the basis for your permanent visa. Labor Certification is
not required for TN, H-1B, or O-1 nonimmigrant visas. Labor certification
for professionals is only required if you are seeking a Permanent Resident
Visa ("Green Card"). Labor Certification is a complex process.
Labor certification requires the full cooperation of your employer; the
application must be filed by an employer who wants to hire you on a
permanent basis. The employer must engage in a campaign of advertising
that is designed to locate qualified American workers; if no qualified,
willing and able U.S. workers apply; and if the job requirements set forth
in the ad are not unfair to U.S. workers (citizens and green card
holders); and if the salary is in keeping with the level of the work; and
other requirements are met; the Secretary of Labor issues a Labor
Certificate. With this, and proof that you meet the qualifications for the
job, you can apply for permanent residency. The rules for advertising for
labor certification are complicated and they vary, depending on which of
the three approaches is used: Regular Labor Certification, Reduction in
Recruitment, or Special Handling Labor Certification. They also vary
state-by-state and by regions within the USA. These rules are about to
undergo extensive reworking when the U.S. Department of Labor promulgates
the "PERM" regulations, anticipated in early autumn 2003. If you
can apply prior to that time, it may be more beneficial, particularly for
college faculty positions.
Labor Certification for College Faculty or Research Associates:
For those of you who obtain a full-time position at a university, whether
a research position or a teaching position, that involves teaching at
least one college level class, you may qualify for the fastest Labor
Certification process, "Special Handling". For others, you may
qualify for the second-fastest, "Reduction in Recruitment". If
you presently have an H-1B visa, you should promptly determine whether
your present position may also qualify you for a labor certificate, for
two important reasons. First, there are strict time limits within which
your application must be filed, for Reduction in Recruitment 6 months, for
Special Handling positions 18 months. Second, the PERM regulations will
eliminate the special handling program for college faculty. The point is -
don't delay in finding out if your newly-acquired job, or the job you got
17 months ago on a temporary visa, might also be the basis for your
permanent residency.
Permanent Visa without Labor Certification:
There are three ways of obtaining permanent residency without having to
first offer the position to a U.S. worker - and all three depend on
proving that you are such a desirable individual, that the government
should not require you to do so.
Outstanding Researchers and Professors and Applicants of
Extraordinary Ability:
As a broad, general observation, the requirements for these categories are
the same as for the O-1 visa. In actual practice, the degree of
"outstanding" or "extraordinary" caliber you need to
prove for a nonimmigrant (i.e. temporary) O-1 visa, is lower than for the
issuance of permanent residency under these similarly-worded programs.
Also, you must be in a tenured or tenure-track position.
National Interest Waivers:
In addition to meeting similar requirements for the categories immediately
above, National Interest Waivers may be issued to individuals who have ten
years of experience in their field, whose work benefits the entire United
States, whose work has substantial intrinsic merit, and who can
demonstrate that the United States would be adversely affected if a labor
certification were required. These are difficult to obtain, but under the
right circumstances are a viable option.
J Waivers:
Some J visa holders are required to return to their homeland for two years
before being allowed to change to another visa status. One avenue worth
considering is a waiver of this two-year return requirement.
Which path is for me?
It is very hard to generalize about your options under immigration law,
because there are so many variables: One variable is your present visa
status. If your F-1 student visa is about to run out, the lack of time may
limit your options, requiring you to seek a visa that is quick to obtain,
and applying for residency later on. If your J visa is about to run out,
before you can change visa status it may be advisable to verify whether
you are bound by the two year return requirement by asking for an Advisory
Opinion from the U.S. Department of State.
Another variable is the willingness of your employer to file an
application for your permanent resident visa. Very often, employers want
to have you work for them for a while on Optional Practical Training
("OPT") or an H-1B visa before they will agree to sponsor you
for a permanent position. Another variable is what part of the country you
will be working in, because this determines which Service Center will
adjudicate your petition, and the processing times vary widely at these
four Centers.
If you qualify for Optional Practical Training, you have one year during
which to position yourself for your next work visa. Some of you will be
able to go directly from a student visa to a permanent visa ("green
card"). You are more likely to require an intermediate visa between
your student visa and your permanent visa, such as an H-1B visa or O-1
visa.
Premium Processing
H-1B visas are taking two to seven months to process, depending on where
you will be working in the USA, and thus which of the Service Centers will
handle your application. If you pay an extra $1,000 and file Form I-907,
the immigration authorities will process your case in two weeks. O-1 visas
can also receive this accelerated treatment.
If you are in F-1 student status on OPT, you must receive your H-1B change
of status approval notice prior to the last day of validity of your OPT
document, or you will have to stop working until you receive it. (Or you
can file for Premium Processing and pay an extra $1,000 to accelerate the
process and get a result in under two weeks).
Note:
The information herein is of a general nature and may not apply to any
particular set of facts or circumstances, nor should this information be
construed as legal advice. For an evaluation about your case, please
consult with an immigration attorney.
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